Thursday, Feb 02 2012
• 10 a.m. (ET)

Catholics, Contraception and the New Health Care Law

As President Obama addressed the National Prayer Breakfast this morning, Catholic groups around the country were roundly criticizing him. Earlier this week his administration reaffirmed new regulations requiring employers to include birth control in their health care plans. Churches are exempted from the ruling. But Catholic groups had lobbied hard for the exemptions to include faith-based organizations such as Catholic universities and hospitals. The White House said no, now some Catholic groups are saying they will not comply with the new mandate. Join us to discuss the growing divide between church and state.

Guests

Mark Rienzi
professor of constitutional law, Catholic University of America

Judy Waxman
vice president of healthcare and reproductive rights for the National Women's Law Center

Transcript

10:06:56

MS. DIANE REHMThanks for joining us. I'm Diane Rehm. Religious-affiliated employers must include contraceptives services in their health care plans. The decision by the Obama administration has inflamed Catholic groups across the country. Joining me to talk about the decision and its ramifications: Judy Waxman from the National Women's Law Center, Mark Rienzi from the Catholic University of America, and Julie Rovner from NPR.

10:07:33

MS. DIANE REHMI look forward to hearing your questions and comments. Join us by phone at 800-433-8850. Send us email to drshow@wamu.org. Join us on Facebook, or send us a tweet. Good morning to all of you.

10:07:55

MS. JULIE ROVNERGood morning, Diane.

10:07:55

PROF. MARK RIENZIGood morning, Diane.

10:07:56

10:08:05

ROVNERWell, the only people who are actually exempted are churches themselves, really any organization whose mission is religious. So a church who actually -- their goal is to -- is a purely religious one. So if you are a church and you hire only people who are members of your religion and your job is to inculcate religion, you are not -- this regulation does not apply to you.

10:08:31

ROVNERIf you're a religious organization, however, for instance, a religious hospital or a religious university, and you hire people of your religion and other religions and your purpose is not purely religious, then this does apply to you. And that's where the difficulty comes in. So we have a lot of religious hospital, religious universities who are very upset about this.

10:08:53

REHMAnd this is not a new decision, is it? Isn't it similar to one made last year?

10:09:01

ROVNERWell, it is. It's actually the final version of one made last year. But I should also point out that this is not a new requirement. Actually, the Equal Employment Opportunity Commission ruled back in the year 2000 that if a health insurance plan covers prescription drugs, it must also cover prescription contraceptions. There are 28 states that require prescription contraceptives to be covered.

10:09:25

ROVNERAnd, in fact, in a hearing about this last summer, one of the representatives from a Catholic hospital said one of the ways that Catholic hospitals had been getting around this is that they didn't have to abide by the state laws because they could become self-insured and, therefore, be covered by the federal laws. So there were some loopholes. And so what this actually does is it closes some of those loopholes. And, in fact, I think we'll talk about this a little bit later about the EEOC.

10:09:54

ROVNERSo that -- this ruling has been on the books. What this regulation actually does is it says that these contraceptives have to be available without co-pay. That's really all it does. So there's a lot of misunderstanding that this is the first time this has been required. It's been required for quite a long time.

10:10:13

REHMJulie Rovner of NPR. Mark Rienzi, you're representing two colleges that have filed lawsuits against the regulation. Tell us the grounds on which you're challenging it.

10:10:29

RIENZISure. Just to be clear, although I teach at Catholic University, I represent the colleges through the Becket Fund for Religious Liberty. The claims of the colleges are relatively straightforward. Although, as Julie said, there have been some previous requirements that insurance policies cover contraceptive drugs, what's entirely new here is that there are very, very limited ways for religious groups not to participate.

10:10:55

RIENZISo under state laws, different colleges, including Belmont Abbey College, for example, one of the ones that's suing, was given an exemption precisely because it is religious. What's new is that the federal government is now requiring virtually every employer to carry not just contraceptives but also the morning-after pill, Plan B, Ella, sometimes called the week-after pill, drugs that many religious Americans and many other Americans believe cause abortions.

10:11:24

RIENZISo there's a broader requirement, and there's no chance for religious groups -- for most religious groups to get out. The exemption is so narrow that a Catholic soup kitchen would not get the exemption simply because it chooses to feed hungry Jewish or atheist people. That's an absurdly narrow religious objection.

10:11:41

REHMMark Rienzi of Catholic University of America, senior counsel with the Becket Fund for Religious Liberty, representing Belmont Abbey College and Colorado Christian University. Turning to you, Judy Waxman, contrary to a lot of people, you believe the federal government made the right decision with this regulation. Talk about why.

10:12:12

MS. JUDY WAXMANThe reason I think it was the right decision is that the Department of Health and Human Services, with the advice of researchers and scientists and practitioners, decided that -- or I should say, made a ruling that contraceptives are a preventive health service for women, and that really also affect their children and their families. I'd like to go back a second. Contraceptives have been declared by the CDC, the Centers for Disease Control, as one of the 10 major public health achievements of the 20th century.

10:12:54

MS. JUDY WAXMANThink about 100 years ago when contraceptives were not really available. Contraceptives make a huge difference in the lives of women and in their health and in the health of their children. This is a preventive service that, in fact, 98 percent of women, including Catholic women, use at some time during their lives. It is something that will be helpful to their health if they have access to it that is affordable and easy to get.

10:13:28

REHMWhat do we come down to here, Judy Waxman? Is it the issue of the federal government forcing a religious institution, for example, Catholic University, to go against its own beliefs and provide something that is totally against its principles?

10:13:57

WAXMANWell, first of all, they're not actually providing it. It would just be covered in the insurance. And when contraceptives are covered in insurance, it really doesn't cost anymore. In fact, overall, the premiums might even go down. So they're just allowing it to be covered. But the point is the people who they are covering by this insurance are every religion. They are not required to take this particular kind of drug or device.

10:14:25

WAXMANIt's only being offered to every person who wants to be able to take it for public health reasons, and the individual is the person really with whom the religious liberty rests.

10:14:37

REHMJudy Waxman of the National Women's Law Center. You can join us, 800-433-8850. Mark Rienzi, I know that even before this ruling came out, Belmont Abbey College was being investigated for refusing to cover prescription contraceptives. Is it right, in your view, for the federal government to try to micromanage what a college is doing?

10:15:12

RIENZINo, it's not right. And it's contrary to federal law and contrary to the federal constitution. As Judy points out, these drugs are already widely available. If somebody wants to get them, they can get them.

10:15:24

REHMOut of their own pocket.

10:15:25

RIENZIThey can get them out of their own pocket. If the federal government believes everybody needs insurance coverage for it, the federal government could provide that. What's really at issue here is whether the government can force particular people to pay for it. Judy said that it's the individual who takes the drug. It's their religious liberty choice. That person may make a religious decision.

10:15:44

RIENZIBut to the monks at Belmont Abbey College, their participation by paying for the drug through an insurance policy is something that's forbidden by their religion and they won't do. So you have drugs that are already widely available that can be gotten to people in many other ways, and you have a religious group that has the right under the Constitution and federal law to make its own decision about where the religious lines lie.

10:16:05

REHMJulie Rovner, the EEOC ruled as far back as 2000 on something like this. Talk about what they did and how it relates to this ruling.

10:16:18

ROVNERThey basically said it was a matter of fairness, that if -- for example, if a health insurance plan covered prescription drugs, that it had to cover basically all prescription drugs and that these are FDA-approved prescription drugs, prescription birth control and that would include, as Mark said, now of these drugs. He's talking about Plan B and Ella. These are the -- now, these are the morning-after pills. They were not talking about the actual abortion pill Mifepristone. That is not included in this.

10:16:47

ROVNERBut sterilization is included in this, and that's not part of the EEOC ruling, which is also problematic, obviously, for Catholics and some other religions. I mean, it is an extraordinarily difficult question on the other hand, you know, what -- the EEOC ruling came up shortly after Viagra was approved.

10:17:04

ROVNERAnd I think that was sort of how this came about is that if insurance plans were covering Viagra, which was very expensive, particularly when it was first approved, you know, sort of why are men with erectile dysfunction entitled to get Viagra covered by their insurance, but women are not entitled to have their birth control pills covered? That it was not so much a matter of religious freedom. It was simply a matter of pocketbook issue. So that was where the EEOC ruling came about.

10:17:30

REHMMark, are we dealing basically with separation of church and state?

10:17:36

RIENZIWe certainly are at some level, and this is something that the Obama administration dealt with and took a big loss at the Supreme Court on just a few weeks ago when they tried to tell the Supreme Court that the EEOC and the federal government could be involved in dictating to a church who its ministers are going to be. I'd suggest anyone who believes in the separation of church and state should think the federal should have nothing to do with a decision like that, and that's what the Supreme Court said 9-0.

10:18:02

RIENZIHere, the administration is trying to dictate, well, what are the things that a religious group has to pay for for people who work for it, for the students who come to the schools for, in many ways, the religious environment? And the answer is the federal government just has no power to force churches and religious individuals to violate their beliefs.

10:18:20

REHMMark Rienzi, he's professor of constitutional law at Catholic University. We'll take a short break here. We have many callers waiting. Try to get through to us by email at drshow@wamu.org.

10:20:04

REHMAnd we're talking in this hour about birth control. The Obama administration has reaffirmed new regulations requiring employers to include birth control in their health care plans. As we said earlier, churches are exempt, but Catholic groups had lobbied hard for exemptions to include such faith-based organizations and Catholic universities and hospitals. The White House has said no.

10:20:43

REHMHere's an email from Susan, who says, "I'm a 67-year-old Catholic woman who is employed by the church for over 20 years. I've also voted Democratic in every election except one. Can you, please, explain to me what the administration hopes to gain by such an in-your-face confrontation with the Catholic Church? I just cannot see what they'll achieve." Judy Waxman.

10:21:16

WAXMANI think what the administration is trying to do here is to protect the women, and they are women of every religion that work for these particular institutions and go to school at these institutions. Again, 98 percent of women in this country use contraception. It is discrimination on the part of the organization that says, I don't believe in this, so I am not going to give you what every other employer is going to give you because I don't like it.

10:21:50

REHMSo if I'm a Methodist, for example, employed by a Roman Catholic hospital and I go to my employer asking for birth control pills or some device, the hospital could say, sorry, we don't do that.

10:22:14

WAXMANYes. And, again, we're just talking about insurance coverage, and I want to reiterate saying the institutions will pay for it is really a red herring because it doesn't cost anything in the health care plan.

10:22:25

REHMBecause the federal government is paying.

10:22:26

WAXMANBecause -- no, no, because when women have access to birth control contraceptives, it saves the health plan money overall because they are healthier and can space their births and so forth. So the church or the organization is not really paying anything extra. That's one issue. I am very confident that the colleges that want to teach or the hospitals that want to teach what their beliefs are is a very appropriate thing for them to do. They -- however, they cannot impose. They cannot coerce their employees and their students to abide by what they think is the right thing.

10:23:13

REHMJulie Rovner.

10:23:14

ROVNERThe other -- there's two other complications here. One of them is that many women are prescribed oral contraceptive for things that are not birth control-related for medical reasons. There are a lot of reasons to take oral contraceptives. There is an article in The New York Times this week about a woman who was taking birth control for a medical condition. She was a student. She finally couldn't afford it anymore, and then she had…

10:23:37

REHMShe was also a lesbian. She wasn't using it for birth control.

10:23:39

ROVNERThat's correct. Exactly. She definitely wasn't using it for birth control. And when she could no longer afford to take it, she had an ovarian cyst that ended up rupturing. So that was clearly something that was not birth control-related.

10:23:52

ROVNERBut also, a story that I did a month or two ago, there are a number of Catholic institutions that are already providing this coverage in recognition of the fact that they are competitive employers, that they need to hire, you know, people who are not of that religion and who appreciate having this coverage because, as Judy pointed out, the vast majority of women, including Catholic women, use birth control.

10:24:15

REHMSo, Mark, how many colleges, universities or Roman Catholic organizations have entered the suit against the federal government?

10:24:27

RIENZISo far, there are two: Belmont Abbey College, which is Catholic, and Colorado Christian University, which is Christian, evangelical Christian. They are not Catholic. To go back to a couple of things that Judy said, first, on the idea that these churches and institutions and colleges aren't paying something extra, to be clear, the objection is not simply dollars and cents, the cost of my policy will go up.

10:24:50

RIENZIReligious principles don't have a dollar sign attached to them. It is the idea that they are paying money to provide a drug that violates their religion. Judy said she has no objection to schools preaching their message. It's very difficult for the monks on Sunday morning to preach to people, don't use these drugs, but then on Monday morning to be paying for the drugs and providing counseling for the drugs and telling them where to go get the drugs. It severely undermines their message to have to do that.

10:25:16

RIENZILastly, the suggestion that these schools or institutions are imposing their views or coercing people just makes no sense. There's no law that requires you to go work for a religious institution. There's no law that requires you to go to a Catholic school. If you go to a school run by monks and the monks sign your paycheck or the monks provide your education, you're probably not all that surprised that the monks have certain religious principles they want to run their school by.

10:25:38

REHMAt the same time, I wonder how many potential employees read that fine print in the health insurance that the organization provides if, you know, they come in thinking, well, I've got health insurance, I'm covered, and under that is birth control.

10:26:04

RIENZIWell, I can't speak to what individual -- other employees do. I can tell you that my health insurance package, when I received it from Catholic University, says, big and bold and in big type, the things that they won't cover. And so at least one school that I know of, the one that provides my health insurance, says it very loud and clear, these are the things that we won't cover.

10:26:22

REHMSo Catholic University is among those that say it will not cover, but has not entered the suit with the other two.

10:26:34

RIENZITo date, Catholic University has not entered either of the lawsuits.

10:26:37

REHMAnd why do you suppose that is?

10:26:40

RIENZII don't speak for the university, and so I don't -- I wouldn't pretend to know. I'm not the decision maker at the university. I just teach law there, so...

10:26:47

REHMAll right. Julie.

10:26:49

ROVNERWhy hasn't Catholic University...

10:26:50

REHMNo. I thought you were about to say something else while Mark was talking.

10:26:55

ROVNERNo.

10:26:56

REHMAll right. I know Judy has something to say.

10:27:00

WAXMANWell, if I were a religion, if I ran a school and I believed in a certain religion that did not agree with immunizing children -- let's say, it's against my religion for my own faith, I don't believe in immunizing children -- I believe that the -- if that particular religion run a school or a health facility and had employees of every religion, that this discussion would be different. In that case, people would say, well, of course, they have to cover immunizations for children.

10:27:38

WAXMANIt's a public health matter. It's going to affect the children's lives and the children around them and their family's lives. We believe, as -- in a -- in our public health world that children should get these immunizations. In fact, most school districts, maybe even all, require them. Now, no one requires contraception, but it is a public health matter. Almost all women use it, and it isn't so easy to get for many women. It is expensive.

10:28:09

REHMWhat about that analogy, Mark?

10:28:11

RIENZIWell, you know, the answer I'd give is that if a particular health service is considered so urgent, if contraceptives are urgently needed, why can't the federal government provide it? As Judy said, it doesn't actually cost more. The federal government provides lots of things. If the government decides this is compellingly important, why can't the government simply provide it to people as opposed to making people violate their religion to do that? That's actually what the federal law requires them to do. They're not simply allowed without a compelling interest to force people to violate their religion.

10:28:43

REHMJulie Rovner.

10:28:45

ROVNERWell, of course, the government does provide contraception to poor women through the Title X program, but it's -- the need is greater than the funding for it, and of course, there are candidates who would like to get rid of Title X entirely anyway saying that that's not the government's business to be doing, but that's a whole another discussion. But there -- I mean, obviously, there is a tension about, you know, should -- there is a religious argument here about should you require people to, you know, religious organizations to violate their religious freedom to do something.

10:29:16

ROVNEROr, you know, who's right to trump who here? I mean, this is obviously an ongoing argument. And, you know, it is worth pointing out, however, that in public opinion polls that support for requiring insurance companies to cover contraception is extremely high. But that is -- that doesn't suggest that, you know, when you ask the question then, should religious organizations have to violate their religion by offering something, that those questions -- I actually haven't seen polls of that.

10:29:45

ROVNERAnd this is, you know, this is one of those places, where if we're going to have, you know, you could, of course, solve this entire problem by having a government-, you know, run health plan. It comes all the way -- always comes back to single payer. We wouldn't be having this conversation if we had a government-run health plan.

10:30:00

REHMAll right. We've got lots of callers, so let's take our own very small poll by hearing what they have to say. Let's go first to Murray, Ky. Good morning, Ryan. You're on the air.

10:30:16

RYANGood morning. I don't understand. No one is being forced to take this drug, to take birth control. This is just providing the option for women who are silent in their religious community, who may be in a relationship where it's not approachable to be discussed. I don't understand why this is so vital. Why does the religious right hold on to this so hard? No one seems to take birth control. It's just an offer, an option.

10:30:49

REHMAll right. Mark.

10:30:50

RIENZITwo things. One, it is an offer that has to be paid for by someone, and what the institutions are objecting to is being involved in making the choice. So we can say, oh, well, people have the choice to take contraceptive, or they have the choice to take a drug that may cause early abortions. In this country, that's currently the law. You have the choice. The question is do other people have to get forced by the government to participate in your choice?

10:31:14

RIENZIDo they need to be forced by the government to be part of it? And, secondly, I just say, judging from the reaction, it's not at all simply a religious right issue. Both that email that Diane read a few minutes ago from a longtime Democratic voter, a lot of outrage from the religious left and previous Obama supporters -- and The Washington Post editorial page, of all places -- saying that the Obama administration's treatment of religion here is wrong.

10:31:38

REHMHere's another email from Jim, who writes on our website. "The outrage over the new health insurance mandate doesn't make a lot of sense. Church-affiliated employers are not doling out contraceptives. They are providing employees with health insurance coverage, which is a part of the employees' compensation. When the church begins teaching Catholics that they must reject any employer plan that includes coverage for contraceptives, then their outrage might begin to make sense." Mark.

10:32:23

RIENZIWell, that's that emailer's view, and I'd say the emailer is entitled to that view. But these churches, their view is that being forced to pay for the insurance that provides the contraception or the abortion is being forced to participate. That's their religious view. And in a diverse society, people are entitled to their different religious views. And so the emailer can have his or hers, and the churches are allowed to have theirs. And the law says the government has to respect both.

10:32:46

REHMMark Rienzi. He is with the Becket Fund for Religious Liberty and Catholic University of America. And you're listening to "The Diane Rehm Show." Judy Waxman, I know you wanted to add something.

10:33:02

WAXMANWell, first of all, I don't want to get into a debate about when life begins, but this issue is not about abortion. It is about contraception. I'm going to leave it at that. The other thing is I want to go back to the women because this is discrimination against women of all faiths. To say to them, I am not going to do this for you because I don't believe in it is coercive, and it is an issue that is going to affect their health and the health of their families.

10:33:35

WAXMANAnd I'm finding in this discussion the women, the over a million women that would be affected by this, plus possibly dependents, would be left out of this and have a difficulty, potentially, in finding or getting affordable preventive health services, which is in the same category as mammograms, blood pressure testing and immunizations.

10:34:03

REHMOf course, the other question here raised by the Guttmacher Institute is that about half of all pregnancies here in the U.S. each year are unintended, so one wonders whether access to better birth control couldn't help reduce the number of abortions. Mark.

10:34:30

RIENZIWell, the Guttmacher Institute also says that more than 90 percent of private employer plans already cover contraceptives. And as Judy pointed out earlier, her stat was 98 percent of women already use them. So it seems highly unlikely to me that the issue is employer coverage of those drugs. There are plenty of employers who cover them.

10:34:50

REHMSo you don't have any problem with women who are refused by institutions going elsewhere for coverage of their birth control.

10:35:03

RIENZILook, the monks at Belmont Abbey College would encourage people not to do that, but they understand that they are free people. So there is no -- we keep hearing the words coerced and imposed. There is no imposing or coercion going on by someone simply saying, hey, I can't pay for that. The imposition and the coercion going on is when the federal government threatens someone with three or $400,000 in annual fines if they won't share the government's preferred view of contraception and abortion.

10:35:29

RIENZIAnd although we won't get into the debate about when life begins, I would simply say that's something which different people have different views. And there are plenty of people of good faith who believe that human life begins at conception and therefore that some of these drugs do cause abortions. It's a point for debate, but people are entitled to different opinions.

10:35:43

REHMJulie.

10:35:44

ROVNERI just -- I don't want to -- left the idea that everybody has complete access to contraception. There are 50 million people who don't have insurance. That's why the law passed that has this debate going now. There are lots of people who don't have insurance, and those people obviously don't have access to pay for contraceptives.

10:36:00

REHMJudy.

10:36:01

WAXMANYeah. And also when I said 98 percent of women use contraceptives, I meant at sometime during their reproductive lives. And, of course, as Julie says, many people don't have the insurance. Many people don't have the money, do not have the access. And the point of getting people access to insurance that will cover their needs means that they will be able to live healthier lives.

10:36:27

REHMAnd you are hearing the voice of Judy Waxman. She is at the National Women's Law Center. I want to take a quick caller from Dallas, Texas. Gwen, you're on the air.

10:36:43

GWENHi, Diane.

10:36:44

REHMHi there. Quick...

10:36:46

GWENThis is my first time calling, but I felt I had to call. I am a Catholic in Dallas, and last Sunday we got a letter from the bishop about this issue, urging us to support the U.S. Conference of Bishops. And I'm very upset. I think it is discrimination against women. I don't -- when you go to church, you see couples with two or three children. They are not -- they're using contraception, OK?

10:37:18

GWENBut aside from our faith, I don't want a Catholic school or a Catholic institution that only hires Catholics. Part of our religion is to be open to other religions.

10:37:31

REHMGwen, I'm glad you called. We have to take a short break now. Thank you for sharing your own experience. Short break and right back.

10:40:04

REHMThis issue of providing birth control by religious institutions is clearly a highly charged one, and I appreciate the fact that my guests are using their own moderate tones in explaining their own positions. Let's go to Baltimore, Md. Tyra, you're on the air.

10:40:34

TYRAGood morning, Diane. I love your show.

10:40:35

REHMThank you.

10:40:38

TYRAI think that the argument is being framed improperly. The real issue to me is that Catholic universities and other religious institutions and hospitals take a lot of federal dollars, federal, state and local dollars. They take them in Medicare reimbursement, in uncompensated care cost, in matching dollars when they do statistically need to expand the facilities, in student loan, direct loans that are underwritten by the federal government.

10:41:08

TYRAIf you are going to take any of those dollars, federal dollars then you are subject to federal law. And, therefore, if you don't want to do that in your religious institution, don't take a federal dollar. Don't employ people of a religion, and you're free to do as you choose.

10:41:28

REHMMark.

10:41:30

RIENZIWell, I think that actually is, in part, the message that we're getting from this administration is that if you wish to stay true to your Catholic beliefs, you better get out of the health care industry, the education industry, the soup kitchen industry, in the social service industry. And that really is a growing problem, not just with the federal government but across the country where governments are trying to say, well, we like your help feeding the poor. We like your help dealing with sex trafficking victims.

10:41:54

RIENZIWe like your help educating people. We like your help healing people in hospitals. But if you want to give us that help, you have to check your religion at the door. And I would just say that this country was founded on the exact opposite principle, that people are allowed to have different religions, that we have a diverse society, and that the government doesn't tell you you need to give up your religion to participate.

10:42:12

REHMJudy.

10:42:13

WAXMANI think what the federal government here is saying is you cannot discriminate against people so that -- let's say I'm a hospital, and I took federal money. I could not say, I only will serve people with white skin. I cannot say, I will only serve people of this particular religion or with this disability, but not that disability. And in the same way, this is discrimination against women by denying them access and payment for a service that protects their health and protects the health of their children.

10:42:52

REHMJulie.

10:42:53

ROVNERYou know, this is a really incredibly difficult political situation, I think, for the Obama administration. I think the caller before this one, who talked about -- that she was really upset with the letter from the bishop. You've got the bishops, one the one hand, who are extraordinarily and legitimately angry that they are, you know, being told to do something that violates their teaching. On the other hand, you have, I think, a majority of the lay Catholic population who reject this teaching.

10:43:21

ROVNERWe know that the vast majority of Catholic women use artificial contraception in violation of the Catholic teaching on this subject. So you've got the administration. Do they want to sort of basically go with the Catholic lay population, or do they want to go with the bishops? They cannot please both of them. So they were going to have to irritate one side or the other in making this decision.

10:43:41

REHMDo you expect this to hit up to the Supreme Court, Mark?

10:43:46

RIENZII do. I mean, I would say it's something that's being attacked on all fronts. It's being attacked through legislations. Sen. Rubio just introduced a new statute in Congress to change that part of the Affordable Care Act. It's being attacked through publicity, through petitions. We have a big petition at becketfun.org.

10:44:04

RIENZIBut it's also being attacked through litigation, and we do expect that litigation to result in a favorable outcome. The bottom line is the law is really very clear here. The government can't do what it's trying to do and we expect to win those cases.

10:44:17

REHMAnd how many Roman Catholics now sit on the Supreme Court, Judy?

10:44:23

WAXMANA majority.

10:44:24

REHMA majority. All right. Here is an email from Gene, who says, "I'm a social justice Catholic who gave money and helped out in the Obama campaign in 2008. While I'm not a fan of Catholic bishops, I'm with them on this one. President Obama has shot himself in the foot by closing conscience loopholes. He's betrayed many Catholics in health care who stuck their necks out to support him during the health care law controversy in 2009." Judy.

10:45:04

WAXMANYes. Well, I'm disappointed that the caller feels that way. I think there are many, many millions of people that work for these institutions that may be Catholic or may not be Catholic. But, again, because it is their health that is at risk and that we do have a new plan, and we have the plan saying that contraception is a part of public health. Women can use it if they want to and they need to. And they can get it at affordable and accessible way, that this is very important for American women and for their families.

10:45:45

REHMMark.

10:45:48

RIENZII would just say two things. One, most people don't take contraception -- most people take contraception because they want to prevent having a baby. The definition of preventative care set forth in this regulation when it was originally passed in Congress, there was discussion about it. It was for preventing things like disease, breast cancer, things that everyone can be onboard for.

10:46:10

RIENZIWhat the government is doing here is they're expanding the definition of prevention to include preventing pregnancy, preventing a human person. That's a choice, and people are entitled to have that view. The only question is, can the government force people to pay for it? And all the religious institutions are saying is that the government is not allowed to say, well, if you want to employ people or serve people or help people, we're going to make you pay for this.

10:46:34

RIENZIAt the end of the day, the government can provide it or somebody else can provide it. It doesn't have to be done by religious employers.

10:46:39

REHMWasn't prevention of pregnancy part of that debate, Julie?

10:46:44

ROVNERWell, it was indeed. And the Institute of Medicine that -- it was given to the Institute of Medicine to decide which preventive services should be part of that package, and the Institute of Medicine decided and had a lot of scientific basis to make contraception part of that preventive care package. And then Secretary -- HHS Secretary Sebelius adopted that package from the Institute of Medicine. That's how it got into this package in the first place.

10:47:08

REHMWhat was the Institute of Medicine's rationale?

ROVNERThat -- as Judy was saying, there's a lot of -- that being able to space out pregnancy is -- benefits the health of women and actually saves money, and there are -- as I mentioned, there are also other medical indications for the use of contraception.

10:47:29

RIENZIAnd anyone who wants to can go look up who the invited speakers were for the Institute of Medicine's panel, but I would just say, you can look at the list. They were all politically pro-choice groups that spoke to the Institute of Medicine. So at the end of the day, it's not a very big surprise that that group came out with the contraception-must-be-covered-by-everyone solution.

10:47:46

REHMJudy.

10:47:47

WAXMANThe panel was made up of scientists, medical providers and other gynecological experts. They looked at the history. I mean, the document from the Institute of Medicine on the subject is quite lengthy. And they looked at history and public health surveys and studies. And they, like the Centers for Disease Control, decided that contraception is a public health achievement that should be accessible to all.

10:48:20

REHMAll right. To Winter Park, Fla., good morning, Sarah.

10:48:25

SARAHGood morning, Diane. How are you?

10:48:27

REHMFine, thanks.

10:48:28

SARAHI actually have three comments, and I'll be quick 'cause I know we're running short on time.

10:48:32

REHMOK.

10:48:33

SARAHMy first comment is, thank God, I'm not Catholic because I have two kids, and I'm a very stressed woman and would not be able to handle anymore. And my husband respected me and -- to take that part under control. I had the babies. He took responsibility for that. My third comment is if we want to take higher ground, they preach no drunkenness on -- morning and go back to their monasteries and make beer for me to buy on Friday and Saturday night.

10:48:59

REHMWell, I'm not sure that that is necessarily the case in all the monasteries. Mark, do you want to respond?

10:49:09

RIENZII'm going to take a pass on that, but thanks.

10:49:10

REHMOkay. All right. Here's an email from Francis, who says: Birth control is provided at low to zero cost by Planned Parenthood if it's not covered by one's insurance. I went to Planned Parenthood to get it. Isn't this just a case of government trying to get into the church's business? Aren't we trying to keep church and state separate? There was a story this morning that Susan G. Komen and the cancer charity are getting out of Planned Parenthood. Now, are the two connected here, Julie?

10:50:00

ROVNERIndirectly, the two are connected. Yes. The Susan G. Komen Foundation is pulling its money for breast cancer screening, and it was not -- given Planned Parenthood's budget, it was not an enormous amount of money. But -- and, yes, people can go to Planned Parenthood and get birth control at reduced cost, depending on how much you earn. That is one possibility, another place you can go besides a Title X clinic to...

10:50:25

REHMAt the same time, isn't the federal government pulling money out of -- or state government's pulling money out of Planned Parenthood?

10:50:33

ROVNERThere are attempts to pull money.

10:50:35

WAXMANYes.

10:50:35

ROVNERWell, Planned Parenthood gets money through the Title X program. Planned Parenthood, in many, many states, gets money through -- that is one of their major grantee of the Title X Family Planning program. So in many cases, that is one and the same.

10:50:48

REHMHow do you see this in the big picture, Judy Waxman? Is there some sort of plan here to define, as Mark has said, life beginning at conception and, therefore, a denial of birth control methods to prevent conception?

10:51:16

WAXMANYes. Well, we have certainly seen that trend in certain states and in certain bills that are being introduced. You know, there's -- in Mississippi, there was a ballot initiative on declaring personhood when -- and so forth that would, in effect, mean that no contraceptives could actually be available, I believe, in the state.

10:51:42

WAXMANBut I do want to say that the Catholic Health Association, which represents Catholic hospitals, they looked at Plan B a couple of years ago and have an article which they entitled "Science Shows Plan B is not an Abortifacient." In other words, the ethicists at the Catholic Health Association have told their participants that it is okay to provide Plan B in their emergency rooms.

10:52:16

WAXMANAnd so, therefore, I mean, that is another support for some people -- in a way that the comment that you made, some people are trying to extend whatever definitions they can and include whatever restrictions they can, so that, eventually, abortion and contraception will become less available.

10:52:38

REHMMark.

10:52:38

RIENZITwo things. One, both the FDA and the drug manufacturers for Plan B and certainly Ella can see that they can act after implant -- after fertilization of the egg. And, again, many people can have different beliefs as to when life begins, but millions of people have a good faith to believe that it begins at fertilization. Secondly, going back to the point about Susan G. Komen, I would just say that Judy and I, I'm sure, don't agree about -- much about abortion.

10:53:03

RIENZIBut I think all or most people could agree to get behind Susan G. Komen, and I think it's great for them to simply focus on breast cancer and pull out of being in the Planned Parenthood business so that people from all spectrums, all sides of the issue can get together and join them. I think that's terrific.

10:53:17

REHMAnd you're listening to "The Diane Rehm Show." Julie Rovner, you've done lots of work on this. Is -- are we creeping towards a wiping out of the availability of birth control?

10:53:36

ROVNERI'm not sure I would say that, but it's certainly becoming. I think what's happening is that birth control is becoming more and more enmeshed in the abortion debate. And I think that's different than we've seen it used to be. You had the abortion debate, and you had the contraception. And contraception was always seen as not that controversial. Obviously, in this context it is with the Catholic Church because the Catholic Church particularly opposes contraception per se.

10:54:03

ROVNERI mean, you can have these arguments about the morning-after pill, which, as Mark point out, some people believe it can act after fertilization. But for the purposes of FDA classification, it is still considered a contraceptive. But generally, now, you're getting people who say that contraceptives themselves are bad. Rick Santorum said it on the campaign trail. And you're seeing people, you know, who are saying we shouldn't be giving money to Planned Parenthood, not just because Planned Parenthood does abortions, which they do.

10:54:30

ROVNERAnd that, of course, was part of the basis, I think, for which the reason that the Komen Foundation pulled out. They said it's because they're technically under federal investigation, but there are now number of people on the Komen Foundation board who are clearly anti-abortion. And I think you're seeing more of a push towards saying that contraception itself might be a societal problem.

10:54:51

ROVNERAnd I think we're seeing contraception sort of pulled into this questionable category rather than contraception being seen as -- perhaps, if there were more contraception, more effective contraception, there might be less abortion.

10:55:03

REHMHow much of a political issue do you think this is going to be for the Obama administration going forward in this campaign?

10:55:14

ROVNERWell, this particular issue, the, you know, Catholic Church versus the sort of the women's vote, I think it's a problem. It's clearly a problem.

10:55:22

REHMJudy, how do you see it?

10:55:24

WAXMANI think as more and more American women who are crucial in this election learn about disadvantage that they're going to have, they will be very happy.

10:55:36

REHMHappy?

10:55:36

WAXMANYes, very happy.

10:55:37

REHMMark, how do you see it?

10:55:39

RIENZII think the president has made a huge gamble, and it's going to turn out he's wrong, just like the Supreme Court told him his view of religious freedom was extreme and amazing and untenable. I don't think the American people are going to stand for this. The idea -- going back to your previous question -- that we've got a danger of contraception being wiped out is totally disconnected from any of the facts here. As Judy said, 98 percent of women use it.

10:56:02

RIENZIThe Guttmacher Institute says 90 percent of private employers carry it. The only question is whether a small sliver of religious employers have to be beaten into submission to get in line with the government's view of it. There's no need to do that. There are other ways to get it.

10:56:14

REHMIs that the only question, Julie?

10:56:16

ROVNERI think there are a lot of questions. I think this will be an interesting debate as the -- this campaign year rolls on.

10:56:23

REHMJulie Rovner, she's health policy correspondent for NPR, Mark Rienzi, he's at Catholic University America, senior counsel with the Becket Fund for Religious Liberty representing Belmont Abbey College and Colorado Christina University, and Judy Waxman, vice president for health and reproductive rights and the National Women's Law Center. Clearly a lot to be said going on. Thank you all so much.

10:56:57

RIENZIThank you.

10:56:57

ROVNERThank you.

10:56:57

WAXMANYou're welcome.

10:56:58

REHMAnd thanks for listening. I'm Diane Rehm.

10:57:02

ANNOUNCER"The Diane Rehm Show" is produced by Sandra Pinkard, Nancy Robertson, Denise Couture, Monique Nazareth, Nikki Jecks, Susan Nabors and Lisa Dunn, and the engineer is Tobey Schreiner. A.C. Valdez answers the phones. Visit drshow.org for audio archives, transcripts, podcasts and CD sales. Call 202-885-1200 for more information. Our email address is drshow@wamu.org, and we're on Facebook and Twitter. This program comes to you from American University in Washington. This is NPR.

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